Tag Archives: sulfide mining

The Boundary Waters Reversal Makes the Front Page of the New York Times

The story about the Boundary Waters reversal in the New York Times appears to be causing a stir. Hours after its online debut on Tuesday, the article had attracted hundreds of comments and was all over social media; yesterday, it appeared above the fold on the front page of the print edition. What struck me first about public reaction was that Times readers — a civic-minded and educated lot, on the whole — seem to have been unfamiliar with the basic elements of this story until now.

Most of the commenters’ heat appears to be focused on the Kalorama rental arrangement, which finds the daughter and son-in-law of the president renting a mansion from billionaire Chilean mining magnate Adronico Luksic Craig. It’s the most lurid part the story, and hints at some darker deal, or explicit quid pro quo: a mansion for a mine. I still think caution on that point is warranted.

Luksic was easily able to dismiss earlier reporting in Newsweek, HuffPo, and elsewhere on the rental, because it was based on the laziest form of reporting: writing up a (typically colorful) tweet by law professor and Bush administration ethics official Richard Painter about Luksic using “the Boundary Waters as his toilet”.

He stuck with this denial after the Times story appeared.

Luksic’s denial almost always turns on the issue whether he has ever “met” or “knows” the Trumps and Kushners. In the Times story, however, Luksic’s purchase of the Kalorama mansion is characterized in another way: as a soft opening bid, bringing Jared and Ivanka into an inappropriate, ethically compromised relationship from the moment they arrive in Washington. They are senior White House officials living under Luksic’s roof:

…several ethics experts said they would have cautioned Mr. Kushner and Ms. Trump against renting the home, given the Luksic family’s business before the administration.

“There may be nothing wrong,” said Arthur Andrew Lopez, a federal government ethics official for two decades who is now a professor at Indiana University’s Kelley School of Business. “But it doesn’t look good.”

It doesn’t really make the arrangement look any better to say they “decided to lease the home before knowing the landlord’s identity,”as Peter Mirijanian, a spokesman for Kushner lawyer Abbe Lowell tells the Times; and it’s worth noting that Mirijanian “did not directly respond to questions about whether they learned of that identity before signing the lease,” which would presumably have given Kushner and Trump an opportunity to review the matter with ethics officials. Besides, Rodrigo Terré, a Luksic agent, “said both sides were aware of each others’ identities before the rental deal was finalized. ‘We disclosed our name and the name of my boss,’ he said in a telephone interview.” That’s pretty unambiguous.

After asking out loud — again — whether there had been any formal ethics review of the leasing arrangement, I received this reply from one of the Times reporters:

There is additional new reporting here about the rental arrangement and other matters.

We learn, for example, that Charles and Seryl Kushner accompanied Jared and Ivanka on their tour of the Kalorama mansion. That family picture raises other questions, mainly about Charles Kushner’s longtime business associate George Gellert — who along with his son Andrew Gellert has extensive business connections in Chile. This angle seems worth exploring, especially since the White House nominated Andrew Gellert to be ambassador to Chile. (The nomination was quietly withdrawn, without explanation, in August of 2018. For more, see this post.)

Times reporting also appears to confirm that Antofagasta did, indeed, meet with the White House in May of 2017. The emails I had obtained through FOIA only hinted at the possibility of a meeting: “this same group [from Antofagasta] may also have a meeting at the White House,” wrote Interior’s Karen Hawbecker on April 28th.

A key meeting occurred in early May, when Antofagasta’s chief executive, along with other executives and lobbyists, discussed the issue with the White House’s top adviser on domestic energy and the environment, Michael Catanzaro. The company said it wanted to reverse the Obama-era decisions, which it said were illegal and inflicted “undue damage.”

That meeting now appears in an update to the Twin Metals at Interior timeline. As I’ve pointed out in another post, Catanzaro is especially close to the current Secretary of the Interior, David Bernhardt. While at the White House, Catanzaro had a regular weekly call with Bernhardt. The two oil and gas lobbyists often had lunch together as well. This would be yet more evidence, if more were required, that the Chilean mining conglomerate owned by the Luksic family had unbridled access to the highest reaches of the administration, and these public officials were working on the mining company’s behalf.

The message from an early meeting, according to an attendee who spoke on condition of anonymity, was that officials should prepare for a change in direction.

Parse that carefully. It’s one of the most intriguing paragraphs of the entire story, and it calls into question the administration’s claim — which it is currently defending in the US District Court for the District of Columbia — that the Boundary Waters reversal was made merely to correct an error in Solicitor Tompkins’ 2016 M-Opinion.

Read more about the Boundary Waters reversal here.

David Bernhardt’s Briefings on the Boundary Waters Reversal

bernhardttwinmetals4oct2017.pngIt appears the FOIA department of the Solicitor’s Office at the Department of Interior has gone quiet on me, and has made it a practice if not a policy no longer to reply to emails or return phone calls about the status of my outstanding FOIA request. I should not like to think that they are giving me the cold shoulder because I published the first two batches of documents they produced, or that they are deliberately withholding or delaying the release of more documents. But with each passing day it’s getting harder to avoid a conclusion along those lines.

While trying to figure out if I’ve constructively exhausted administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i), which would give me grounds for a legal complaint, I thought I would look at the calendar entries recently posted online by the Department of the Interior for David Bernhardt, and see what I could learn about the role he played in the Boundary Waters reversal.

Before his nomination to be Secretary of the Interior (which the Senate Energy and Natural Resources Committee just advanced), Bernhardt served as Deputy Secretary of the Interior under Ryan Zinke. Before that, he was the head of the energy, environment and resources division at the lobbying firm Brownstein, Hyatt, et al; he represented many oil, gas and mining companies, and it remains unclear whether, or to what extent, he has severed ties with former private sector clients.

Bernhardt has balked at the requirement that he keep an official calendar, which would at least allow the American public to see who he’s been meeting with. The closest we have are typed agendas or “daily cards,” which list appointments and calls. The agenda items offer little detail, rarely specifying the subject of a meeting. This looks like more than just laziness or negligence. Bernhardt seems to believe the rules do not or should not apply to him, and he appears to be contemptuous of administrative process, norms, and law.

Much the same can be said for the PDF of Bernhardt’s calendar entries the Department of Interior released. There was no attempt to fill or even call out gaps in the record. Pages and entries are out of chronological order, November mixed with September, 2017 with 2018. Adding to the confusion, the PDF is not searchable; it is simply an image of the daily cards. Fortunately, my friend Michael Miles was able to perform a little software magic, and — voila! — we now have a searchable version of the 439 pages of daily cards that Interior produced. It’s online here.

We knew before this that Bernhardt was scheduled to be briefed on the Twin Metals matter sometime in August of 2017. As the timeline indicates, on Sunday, August 6th, Associate Solicitor Karen Hawbecker forwarded a briefing paper to her colleague Jack Haugrud “about the Twin Metals litigation in preparation for a briefing with David Bernhardt.” This was probably some version of the one page briefing that Kathleen Benedetto had prepared for Ryan Zinke back in April of 2017, and which had been adapted and forwarded to the US Embassy in Santiago, Chile at around the same time, in preparation for meetings with Antofagasta’s CEO, Ivan Arriagada. Bernhardt’s briefing would have reflected the progress that the Solicitor’s office had made since that time on the effort to reverse Solicitor Tompkins’ 2016 M-Opinion, following Seth Waxman’s blueprint.

It’s difficult to say whether this August briefing ever took place. Bernhardt’s daily cards show a meeting with Kathleen Benedetto on August 28th, 2017; and Benedetto at the time was carrying the Twin Metals brief. So perhaps that’s it. The daily cards also help us establish a little context for Bernhardt’s August briefing. We can see from his calendar that Bernhardt was in constant and regular contact with Michael J. Catanzaro, who was Special Assistant to the President for Domestic Energy and Environmental Policy before leaving in April, 2018. Bernahrdt and Catanzaro have a weekly call; sometimes they have lunch together. No surprise, as the two men come from the same world of lobbying for oil, gas, and mining interests; but what’s interesting about their regular contact is that it establishes a clear line of communication between the White House, or the Executive Office of the President, where Catanzaro served, and the highest levels of the Department of the Interior.

The revolving door puts one powerful lobbyist in the White House and another at Interior, and the two of them get together regularly, no doubt to discuss a shared agenda.

About a week before Bernhardt met with Benedetto, on August 22nd, 2017, Catanzaro meets to discuss the “Minnesota Project” with Principal Deputy Solicitor Daniel Jorjani. Joining them to discuss the reversal is Stephen Vaden, an attorney from USDA. Two days after that, August 24th*, Bernhardt along with other high level Department of Interior officials hosts the CEO Critical Minerals Roundtable, with the CEOs of 16 mining companies. I’m unable to determine who those 16 CEOs were, but minutes from the annual meeting of the Women’s Mining Coalition on September 1, 2017, tell us that Pershing Gold was among the invitees, and the focus of the roundtable was “how to remove barriers to critical minerals, concerted focus at high level to improve permitting conditions.” Was anyone there to talk about removing barriers to mine the Duluth Complex? The CEO of Twin Metals? Polymet? Antofagasta? Glencore? I’ll do a little more poking around to see if I can find out who the CEO attendees were, and if I can’t come up with anything, I suppose I’ll have to file yet another FOIA request.**

Among the documents already produced by Interior, the earliest reference I’ve found to the Twin Metals matter is a February 2, 2017 Information/Briefing Memorandum [page 4390] prepared by Kristin Ball, Acting Director of the Bureau of Land Management, for Katherine MacGregor, who at that time was Assistant Secretary of Land and Minerals Management. (Michael Nedd’s February 7th, 2017 email has been superseded in this regard; and it makes sense that the initiative appears to have come from MacGregor, not from Nedd. The timeline now reflects MacGregor’s role as prime mover.) In her memo, Ball notes that in the Superior National Forest area proposed for withdrawal, there are deposits of “Copper, nickel, palladium, platinum, gold, and silver” and adds, “Deposits contain critical minerals, due to technological applications.” This early memo establishes a theme that will run through Bernhardt’s arrival at Interior and culminate in the December 19, 2017 release of a new list of critical minerals by the United States Geological Service. That comes just three days before the Jorjani M-Opinion is made public. As I noted in an earlier post, emails show political appointee Gary Lawkowski recommending the Office of the Solicitor spin its December 22nd release with talking points about critical minerals.

Bernhardt was next briefed on the Boundary Waters reversal on October 4, 2017. His daily cards show the meeting at 11AM on that day. It was timely. Just one day before, Bernhardt spoke with Representative Tom Emmer, the Minnesota Republican who, along with Rick Nolan and Arizona’s Paul Gosar, has been working steadily to open the Duluth Complex to mining. This phone call now appears on the Twin Metals timeline. What Emmer and Bernhardt discussed is not specified. Gareth Rees was in the meeting, but the 10:30AM call with Emmer does not appear on his calendar [page 192], which on that day starts at 1PM. Curious that he should have omitted or forgotten to note this call with a member of Congress and the Deputy Secretary.

In any case, Bernhardt comes off that call with Emmer on Tuesday and into his Wednesday briefing equipped with three background documents: the widely circulated one page briefing and scenarios papers prepared back in April, and a July 24 BLM paper on the withdrawal. Correspondence shows that Bernhardt asks to see the 1966 and 2004 leases, along with the M-Opinion prepared by Solicitor Tompkins. It’s clear from Karen Hawbecker’s response that the focus of the discussion at this juncture are the renewal terms in the 1966 leases. Hawbecker directs him to them: Section 5, page 8.

HawbeckertoBernhardt4Oct17

Why this focus? Section 5 will be critical to a legal argument Jorjani ultimately makes in his memo, which is that according to the 1966 leases, production — actually getting a mining operation up and running — is not a precondition for renewal: “the commencement of production is…not a condition precedent to the right to a renewal.” This is another argument Jorjani borrows from Antofagasta’s lawyer Seth Waxman; and for Waxman, reading a production requirement into the 1966 leases counts as one of the “overarching errors” in Solicitor Tompkin’s M-Opinion. “Section 5 instead creates a production incentive” (cf. Jorjani page 6). As Representative Alan Lowenthal pointed out in a congressional hearing back in March, this argument may be ingenious, but it flies directly in the face of a 1966 BLM press release specifying a production requirement for renewal.

Regardless, by autumn of 2017, David Bernhardt had been briefed on the Waxman-Jorjani legal strategy. He had coordinated with Catanzaro and the White House and with Republican political operatives. He had hosted mining company CEOs behind closed doors to discuss the disposition of America’s public lands. He was fully on board.

*Bernhardt’s daily cards date this roundtable August 23rd, 2017. But Katharine MacGregor’s calendar (page 24) shows the event on the 24th, and a walk through or rehearsal of the event on the 23rd. I am inclined to trust MacGregor’s calendar over Bernhardt’s sloppily compiled cards. It is entered correctly on another Bernhardt calendar for August, 2017. Why the discrepancy?

**UPDATE, September 5, 2019: Though I have not yet received a response to my April FOIA requests regarding the CEO Critical Minerals Roundtable, another request has turned up a list of attendees. Lydia Dennett’s excellent investigation of the CEO Roundtable for the Project on Government Oversight drew my attention to it. Here is the list of attendees, as of August 18, 2017:
CriticalMineralsRoundtable20190827

Read other posts about the Boundary Waters reversal here

“America is Not a Company”: Lowenthal Questions Nedd on the Boundary Waters

Nedd7Feb2017Email

“…documents that have already been released”: the February 2017 email from Michael Nedd that Representative Lowenthal used for today’s line of questioning.

One of the documents I obtained from the Department of Interior through a Freedom of Information Act Request came up for discussion at this morning’s Energy and Mineral Resources Subcommittee Hearing.

Representative Alan Lowenthal of California kicked off the question and answer period by asking Michael Nedd of the Bureau of Land Management when he first discussed the issues of the Twin Metals mineral leases in Superior National Forest with the incoming administration. Nedd was evasive (as he was throughout the entire hearing, prompting Representative Jared Huffman to remind him, at one point, that he is “not a potted plant”).

A second question from Lowenthal: “do you recall who from the incoming Trump administration first discussed the issue with you?” got an equally vague reply: Nedd said he did not have “a specific recollection.” So Lowenthal offered a reminder:

Well from documents that have already been released, we know that in early February of 2017, you sent out a briefing memo on this topic, which was entitled “Withdrawal Options.”

As the timeline shows, this email is — so far — the first time the Twin Metals matter is raised at Interior after the new administration takes office. It indicates that Nedd was following up on a discussion he had with staff either that day or before that day; and it raises the question why this matter appears to have been a Trump administration priority. Nedd wanted an updated briefing paper, pronto, by close of business on Thursday, February 9th. Why was this matter top of mind for him? Why the quick turnaround? Why the urgency?

Blumenthal also asked for a copy of the original briefing paper Nedd attached, and Nedd was agreeable but non-committal, saying he would take Blumenthal’s request back to the Department of the Interior. We already know that just a few months later, by late April of 2017, this briefing paper would have undergone enough revision so that the Karen Hawbecker could refer to “options we’ve identified for reversing action on the Twin Metals decision.” So that tells us what we need to know about the direction Nedd gave the group for “working together.” They were to reverse what the previous administration had done.

At whose direction? And why? We still don’t have satisfactory answers to these questions.

Here is Lowenthal’s first round of questioning on the Boundary Waters reversal, which includes his exchange with Nedd over his Briefing Paper. (The video here is cued to the start of his question.)

Later in the hearing, at around 1:26, Lowenthal questions Chris French of the US Forest Service on Secretary Perdue’s cancellation of the environmental assessment in Superior National Forest and about the false assurances Perdue gave Representative McCollum, and asks that French provide relevant documents. After that there is some back and forth with Representative Gosar, who complains of executive overreach by the Obama administration, claims the people of Minnesota want these mineral leases renewed, ends by arguing that polling questions can be misleading, and if we had polled people properly back in 1919, we wouldn’t have a Grand Canyon National Park today. I’m not exactly sure how that last argument is supposed to win the day at a hearing on public lands.

For his part, Lowenthal has a strong sense of what’s at stake throughout this hearing. Just consider this excerpt from his opening statement on the Trump doctrine of “energy dominance” that now informs policy at the Department of Interior:

America is not a company. It may seem like President Trump is trying to treat us like one, like many of his other companies, and let us run it into the ground. But America is a country, not a company, and America’s lands are not excess inventory that need to be disposed of. Our natural resources are not reserves that need to be booked, so our stock prices stay high and our investors stay happy. Our public lands are an investment that we’re holding for our grandchildren, and their grandchildren, and generations beyond. They’re an investment that pays off, by allowing them to know, our grandchildren, great grandchildren, what vast stretches of untainted wilderness look like. That lets them see with their own eyes polar bears, sage grouse, mule deer, and caribou, running wild and free. That lets them learn about ancient native cultures without having to go to a museum, and lets some cultures continue to observe and respect the same traditions that their ancestors have. These are all priceless. They’re irreplaceable. And these are all infinitely more important than whatever extra few dollars can line an oil baron’s pocket over the next few years. I just hope our land management agencies still understand that.

The Architect of the Boundary Waters Reversal

1989 files

“Extrinsic evidence” from the 1980s: one of the files from the Milwaukee District Office of the Bureau of Land Management appended to Waxman’s 2016 letter to Hilary Tompkins.

Principal Deputy Solicitor Daniel Jorjani signed the December 2017 Department of Interior memo that re-opened the door to sulfide mining near the Boundary Waters, but he probably should not be considered the legal architect of the Boundary Waters reversal. That dubious honor appears to belong to Seth P. Waxman. Or at least the key arguments in Jorjani’s memo seem to be largely derived from a letter Waxman wrote on behalf of Twin Metals to Department of Interior Solicitor Hilary Tompkins back in July of 2016.

Waxman’s name may ring a bell. He has had a distinguished legal and political career. Under President Clinton, he served as Solicitor General of the United States. In the last year of the Bush administration, he made oral arguments before the Supreme Court in Boumedienne v. Bush, to uphold habeas corpus rights for Guantanamo detainees. During the Obama years, his name was even floated as a Supreme Court nominee. Waxman is also a partner at WilmerHale, the powerful DC firm that has led both the lobbying and litigation efforts for Antofagasta, Plc in its bid to renew its mineral leases in Superior National Forest.

Waxman sent his 24 page letter to Hilary Tompkins on July 1, 2016. On the same day, he sent a letter to Secretary of Interior Sally Jewell. Those letters are included among Department of Interior documents obtained through FOIA. The letter to Tompkins appears to have been the most widely shared. It was attached to an April 27, 2017 email from Raya B. Treiser of WilmerHale to Cathy Gulac, secretary to James Cason, confirming a May 2nd meeting with Antofagasta CEO Ivan Arriagada at Interior. You can follow it from there as it gets attached to other email exchanges and forwarded around.

HaugrudLawkowski

A handoff from Interior’s Jack Haugrud to a political appointee: Gary Lawkowski, Counselor to the Solicitor. Attached is Seth P. Waxman’s 2016 letter to Solicitor Tompkins.

Waxman’s argument in the letter to Solicitor Tompkins is that Twin Metals has a non-discretionary right to renewal, as dictated by the terms of the leases negotiated by the International Nickel Company and the Bureau of Land Management back in 1966. This is also the conclusion at which Jorjani arrives, and he appears to do so by carefully following Waxman’s lead. Here, I’m going to highlight several places where Waxman’s influence on Jorjani seems undeniable. (To make it easier for others to follow along, I’ve posted the Waxman letter. Jorjani’s memo can be found here.)

To the layman — and I am one, so anything I say here should probably be read in light of that — the very idea of a non-discretionary right to renewal might seem paradoxical, or at least puzzling. Apparently the federal government, and specifically BLM, can “grant” and has twice granted (in 1989 and 2004) the renewal of these mineral leases, but it has no discretion to deny renewal (as long as the company complies with the law). Hobbled, BLM can say yes but not no. Waxman’s argument easily and cleverly explains why this is so. The terms of the 1966 lease, he says, are both “comprehensive” and “unique”, and those unique terms still “govern” (to use the phrase Jorjani prefers) or (in Waxman’s words) “control”:

One of those terms is a right to renew the lease (in fact, to successive renewals). This right is critical to the parties’ overall bargain: The investment required of the lessee under the leases is enormous. But because of recognized operational problems in the area, producing minerals in the short term would have been impossible. The leases thus would serve no rational purpose absent a non-discretionary right to renew; no company would undertake the necessary investment for exploration and development knowing that it could be unilaterally deprived of any ability to recoup that investment. (p. 1)

Of course, it’s possible to think of a rational purpose mineral leases could “thus” serve absent a non-discretionary right to renew. The leases might afford the company an opportunity to explore a mineral resource on public lands within a specified period of time and on certain terms, assess the feasibility of developing the resource, and provide a right to negotiate successive renewals. We can easily imagine circumstances in which the federal government might reserve discretion, and renewal might be contingent on all kinds of things, like changes in environmental conditions, advances in scientific knowledge, evidence of responsible stewardship, or commensurability with other rights. That all sounds perfectly reasonable. There’s no need to insist that a “non-discretionary right” is the only appropriate arrangement, or buy into the view that preserving discretion over renewal confers on government the power to “unilaterally [deprive]” the company of “any ability.”

This is lawyer’s hyperbole, affecting sobriety and marking out an extreme position: the only “rational” course appears to be one that protects the investment of the mining company, from exploration through development. Having entered into a lease agreement with a mining concern, the federal government is now bound to help the company realize a return on its investment. And that would require going way beyond providing incentives. Surrendering all discretion, the government defers entirely to private interests and agrees to relieve the mining company of business risk.

This Extractive Industry First approach is perfectly congruent with Trumpism and its doctrine of Energy Dominance. We see it reflected not just in the Jorjani memo but in some of the changes Ryan Zinke and David Bernhardt brought to the Department of Interior. Perhaps Mr. Waxman is a man ahead of his time — by about a year, it seems. But let’s grant, for the moment, Waxman’s position that this non-discretionary right is indeed the “unique” arrangement the 1966 leases set out, and focus instead on the area where Jorjani’s memo relies most heavily on Waxman: in reaching the conclusion that the 1966 leases “govern.” Here is Jorjani’s brief restatement of Waxman’s argument:

Twin Metals is entitled to a third renewal. First, the renewal terms of the 2004 lease form do not govern. The form is ambiguous, and the intent of the parties to keep operative the terms of the 1966 leases becomes clear once the BLM’s decision files are examined. (p. 8)

Jorjani adds in a footnote (number 38) that Solicitor Tompkins’ memo did not examine this “extrinsic evidence” — 1980s decision files from the BLM’s Milwaukee office, which Waxman attached as exhibits to his letter to Hillary Tomkins — “because of its underlying premise that the 2004 lease forms were unambiguous.” This, too, echoes Waxman, and builds on an argument about ambiguity and how to resolve it that Waxman sets out repeatedly in his 2016 letter to Tompkins: “Because the renewal provision in the 2004 standard forms is ambiguous,” he writes, “extrinsic evidence [namely, the 1989 BLM decision files] must be considered” (pp. 22-3). Jorjani returns to the theme several times: “the meaning of the 2004 leases is ambiguous” (p. 11), but those Milwaukee files from the 1980s clear everything up.

Waxman discusses what should be done in such cases of ambiguity: “Where a provision in a contract is ambiguous, courts resort to extrinsic evidence to resolve the ambiguity by ‘determin[ing] the intent and meaning of the parties” (p. 23). Jorjani is on exactly the same page: “where contract terms are unclear or ambiguous, an examination of extrinsic evidence is appropriate to properly interpret the contract in accordance with the parties’ intent” (p. 10). Waxman maintains that “extrinsic evidence must be considered, and it confirms that the parties’ intent in executing the 2004 forms was to re-confirm that Twin Metals has a non-discretionary right to renew” (p. 3). Jorjani, too, discovers the “intent” of the 1966 parties in the 1989 files:

…the meaning of the 2004 leases is ambiguous. Given this ambiguity, extrinsic evidence beyond the ‘four corners’ of the document may be considered to ascertain the intent of the contracting parties. Examining the decision files of the BLM resolves the ambiguity. The record shows that the BLM renewed the leases in 1989 under the same terms as the 1966 leases, and did so again in 2004. (p. 11)

Though both Jorjani and Waxman seize on the same Milwaukee documents to prove intent, neither entertains the possibility that there might be other extrinsic evidence to consider in this case — to illuminate historical context, help clarify why the Milwaukee office took the actions it did in 1989, or throw into relief the different economic and environmental conditions, or different assumptions about public lands and private industry, that obtain in 1966, 1989, 2004, or for that matter now. This isn’t a historical inquiry, after all: it is, instead, a search for proof of intent that will shore up the mining company’s claim. It’s just a little unsettling to see the vast resources of the Department of Interior being marshaled to that purpose, following the lead of Antofagasta’s counsel.

Let’s go back, once more, to this issue of ambiguity. One of the main reasons why the 2004 leases are ambiguous — and why the 1966 leases control, and why the Milwaukee documents are necessary in the first place — is that the 2004 leases lack what is known as an integration clause. A written contract is “integrated” when the parties consider it to constitute their full and complete agreement. Or, as a Jorjani footnote (49) explains, “Integration clauses, also known as merger clauses, are contract provisions that generally state that the agreement as written constitutes the entire agreement between the parties and supersedes any prior representations.” Jorjani cites Corbin on Contracts for his authority; Waxman, Williston on Contracts: the standard lease forms used in 2004 do not “supersede or annul” the 1966 leases (Waxman, p. 11).

As Waxman states at the outset of his letter, this lack of an integration clause is a point Solicitor Tompkins does not “acknowledge” in her M-Opinion (p. 2). Both Waxman and Jorjanil will go to town on this point.

Waxman:

the Opinion asserts (p.6) that the 2004 standard forms are “complete, integrated documents,” and thus their renewal provision governs the analysis here. In making this assertion, the Opinion does not acknowledge the lack of any integration clause in the 2004 standard forms. (p. 7)

And again:

…the 1966 leases control. The Opinion’s contrary view depends on its assertion (p.6) that the 2004 forms are “integrated” contracts. But they are not; the 2004 forms lack any integration clause (a point the Opinion does not acknowledge), and there is no other basis on which to conclude that the 2004 forms— divorced from the 1966 leases that the parties attached—were integrated contracts. In light of this, the Opinion’s refusal to consider extrinsic evidence conflicts with established law. (p. 2)

Jorjani picks up on the same phrase (“complete, integrated documents”) in Tompkins’ Opinion, and appears to paraphrase Waxman:

Rather than being “complete, integrated documents,” the leases attach without full explanation the entirety of the 1966 leases and do not include an integration clause that states that the 2004 lease forms are the complete expression of the parties’ agreement. These facts alone warrant an examination of extrinsic evidence to determine the intent of the parties. (p. 10)

Here, in a footnote (number 50), Jorjani cites a 1999 Second Circuit case Waxman uses in his letter (p. 9): Starter Corp. v. Converse, Inc.. “When a contract lacks an express integration clause [courts] must ‘determine whether the parties intended their agreement to be an integrated contract by reading the writing in light of the surrounding circumstances.” That’s Waxman. Jorjani cites the exact same sentence, using brackets, as Waxman does, to substitute “courts” for “district court” in the original text, and putting the word “must” in italics for emphasis.

jorjaninote50

That two knowledgeable lawyers are appealing to the same legal precedents might not be all that surprising. But it seems pretty clear that this citation, too, is part of a disconcerting pattern.

None of this goes directly to the question of legal merits, or which reading of the Twin Metals leases should or eventually will prevail. Yet something here is seriously amiss. The blueprint followed by the Principal Deputy Solicitor at the Department of Interior to reverse protections for the Boundary Waters appears to have first been drawn by the attorney for a Chilean mining conglomerate. That should raise some questions about ethical conduct, about revolving door access and undue influence, and about whether the opinion Jorjani released in December of 2017 should be allowed to stand.

You can read other posts on the Boundary Waters Reversal here.

A New Set of Boundary Waters Documents

In response to a Freedom of Information Act request I made back in January of 2018, the Department of Interior has released over 5,000 pages related to the Trump administration’s rollback of federal protections for the Boundary Waters. These and other documents have allowed me to put together this timeline, which tells a pretty clear story. From the very first days of the new administration, Interior Department officials and mining company lobbyists worked closely together, and with blatant disregard for science and the environment, toward a predetermined outcome that served the business interests of a foreign mining company, and not the public interest.

The latest release arrived on Friday afternoon. It’s a collection of email correspondence and attachments from Briana Collier, an attorney in the Division of Mineral Resources. These documents are now published here.

An email from Collier included in an earlier release had tipped me off to a previously undisclosed meeting at the US embassy between the CEO of Antofagasta PLC and the Carol Z. Perez, the US ambassador to Chile. Any hopes that this latest release would shed more light on that meeting, or make other equally significant disclosures, were quickly dashed when I opened the PDF. About 400 of the 650 pages included here are redacted, many of them entirely, on the basis of attorney client privilege or deliberative process. Almost all date from December of 2017, when the Office of the Solicitor at Interior was finalizing the Jorjani memo — the memo that cleared the way for Antofagasta PLC to renew its mineral leases in Superior National Forest.

In these documents, we mainly see officials crossing ts and dotting is in the memo before its release. There are some emails exchanged at the last minute regarding the first footnote in the memo, on the Weeks Act, which establishes the Secretary of Interior’s statutory authority for the disposition of minerals. The footnotes for an important section of the memo (pp. 11-13), arguing that BLM previously renewed the leases on 1966 terms, are the subject of another last minute exchange. One footnote in particular, which is number 65 in the draft under discussion (but not necessarily in the final version, given all the last minute changes) “raises issues we do not want to address.” What issues are those?

Twin Metals continues to work closely with Interior. When Bob McFarlin, Government Affairs Advisor for Twin Metals, comes to DC with Anne Williamson, Twin Metals Vice President of Environment and Sustainability. for a “quick meeting” on December 15th with Tony Tooke, the new US Forest Service Chief, he writes to see whether he might arrange a “short visit” while he’s in town with Kathleen Benedetto. Benedetto and Williamson had met — when exactly, we don’t know — during the summer of 2017. McFarlin asks that Mitch Leverette, Eastern States Acting Director, Bureau of Land Management, join them.

There is ongoing concern over coordination with the Forest Service, from the drafting of a letter announcing that BLM will no longer consider the Forest Service’s non-consent to lease renewal valid, to the very minute the memo is released. Correspondence with the Forest Service’s Kathleen Atkinson is almost entirely redacted. And Interior’s efforts to coordinate with Forest Service only add to the confusion around plans for a news release. At what appears to be the direction of David Bernhardt’s office, work was done on a “relatively short” Minnesota-only press release. Even that is eventually cancelled, and it’s decided that Interior will deal with this only “if asked.”

Before that, however, and at the request of Interior Communications, Gary Lawkowski, Counselor to the Solicitor of the Interior and another Koch veteran, forwards a “one-pager of talking points on the Twin Metals opinion” to Daniel Jorjani and Jack Haugrud for review. He has put them together “given [or with an eye to] today’s focus on critical minerals.” (Recall that “strategic minerals” were a central theme of Ivan Arriagada’s April 17, 2017 letter to Secretary Zinke as well.) In a second email circulating the talking points to Deputy Director of Communications Russell Newell, Lawkowski elaborates: “One thing you all may want to note — the Forest Service has indicated that they believe there are potentially cobalt and platinum deposits underneath Superior National Forest….Cobalt and platinum are on the list of 23 critical minerals released by USGS earlier this week.” Eureka.

As I continue to comb through this latest release, I will add more details to the Twin Metals Timeline. If something here catches your eye, let me know in the comments below, or send me an email (my Twitter handle is also my gmail address). And if you have documents that can add color or contrast or depth to the timeline, please get in touch.

You can read all my posts about the Boundary Waters reversal here.

A Meeting in Santiago about Mining in Minnesota

I’d like to focus, in this post, on what is so far a unique entry in the Twin Metals timeline: an April meeting at the US Embassy in Santiago Chile, with Ivan Arriagada, the CEO of Antofagasta Plc, and Carol Z. Perez, the US ambassador to Chile. We know about this meeting only through documents obtained by Freedom of Information Act requests, and specifically from just one email dated 26 April 2017, sent by Briana Collier to Jack Haugrud:

BrianaColliertoJackHaugrud

Intriguing: but for now, the best I can do is provide a little context.

As the timeline shows, the meeting at the US Embassy in Santiago, Chile in the week of April 26th took place during a period of intense activity around the Twin Metals project. It was held just a little over a week after Mr. Arriagada had written directly to then-Secretary of the Interior Ryan Zinke, requesting an in-person meeting in Washington, DC, on either May 2nd or 3rd. (Arriagada would come to Interior for the first time on the 3rd. Internal emails show that he met on that occasion with several officials at the Department of the Interior, but Zinke is not among them, at least not on the calendar entries I have seen; and if Arriagada met with Zinke separately on May 3rd, there is no entry for any such meeting on Zinke’s official calendar.) So perhaps the embassy in Santiago serves as a way station of sorts, a first stop for Arriagada on his American tour.

It was probably here, in Santiago, that Arriagada first started to make the case he would make in Washington, DC. The letter to Ryan Zinke lays out the appeal the mining company would make at Interior, and it also helps us gain an impression of what this meeting at the embassy was about. It opens with Arriagada declaring that he is “proud” to associate himself and his company — which has never operated a mine in the United States — with “the development of strategic minerals in the United States.” Here in the US, Arriagada clearly understands, minerals acquire “strategic” status when mining companies run into permitting delays and other difficulties. It is, as I’ve noted elsewhere, code for overriding and rolling back environmental regulations. (This leads me to suspect that Arriagada’s letter to Zinke was actually written by the lobbyists at WilmerHale. Whether they played a role in arranging the meeting at the US embassy is impossible to say, given the evidence we have.)

Arriagada’s letter goes on to explain that Antofagasta has already spent “upwards of $400 million in investment” on the “exploratory phase” of Twin Metals. The company frequently brandishes this figure, but I’ve never seen it broken down. Interior’s own Kathleen Benedetto will repeat the $400 million figure a week later, on April 25th, when she briefs Zinke in preparation for his 26 April meeting with Representatives Emmer and Nolan; and the number will be repeated in news stories as well. I am not sure what “upwards” means here, but it seems to be doing an awful lot of work. Principal Deputy Solicitor Jorjani seems to believe caution is warranted: near the end of his December 2017 memo, he notes only that the company “has asserted that it has spent over 400 million in exploration activity.”

For what it’s worth, $400 million is not a number Antofagasta uses in its communications with shareholders or in its financial statements. (See, e.g., here, here and here.) The number routinely associated with the Twin Metals project in these communications is black, not red: $150 million — the value PWC, Antofagasta’s auditor, assigns to the project as an “intangible asset.” When it comes to investments, both the 2015 and 2016 Antofagasta annual reports note a decrease in exploration and evaluation costs, reflecting a “general decrease” in exploration activity “at the Centinela District in Chile and the Twin Metals project in the United States.” There is the added minor discrepancy that this letter characterizes Twin Metals as a “mineral development project, currently in the exploratory phase,” while in the 2016 and 2017 annual reports, the project has already advanced from the Exploratory phase to the Evaluation phase. It appears shareholders and US government agencies are being told two different stories about Twin Metals. In any case, the big round $400 million number is the thing that sticks. It’s used to intimidate and spook. A year later, Zinke will tell Representative Betty McCollum that the Obama administration’s decision exposed taxpayers to “hundreds of millions of dollars” in takings litigation. He was probably recalling Arriagada’s number, or Benedetto’s spin on it.

We now know that Zinke and the Department of Interior were doing Arriagada’s bidding all along, and they’d gotten started well before this letter was written. (And if WilmerHale did in fact draft this letter, then it’s really just some stage business, to create a paper trail for a meeting to discuss an ongoing effort coordinated by WilmerHale.) Interior officials appear to have been less concerned about the exposure of US taxpayers than about the risk the mining company had taken on: “our past and future investment now hangs in the balance,” Arriagada writes in April of 2017. He asks to meet with Zinke to discuss “a viable path forward” for the Twin Metals project. The letter lists three obstacles the Obama administration put in Antofagasta’s way: the M-opinion issued by solicitor Hilary Tompkins; the decision by the Bureau of Land Management to rescind the Twin Metals leases, based on the M opinion; and the withdrawal of thousands of acres of Superior National Forest from mineral development initiated by BLM and the US Forest Service. Remarkably, before Zinke resigned in disgrace, he, Deputy Solicitor Daniel Jorjani, and other officials at the Department of the Interior (and the Department of Agriculture) came through for the Chilean mining company on all three counts.

How any of this work on the mining company’s behalf at Interior bears on the meeting in Santiago, Chile, and what any of it has to do with Carol Z. Perez, the US ambassador to Chile, is hard to say. It’s still not clear why Arriagada thought he should stop first at the embassy in Santiago. A courtesy? An opportunity to get some pointers on how to deal with the new administration? Or something even more specific? To get a better idea, I’ve filed two FOIA requests with the Department of State for communications and documents that will help illustrate the meeting Perez had with Arriagada, but the State Department has labeled the requests “complex,” and I have yet to receive any responsive documents.

We know that Briana Collier briefed Perez, so Perez was looking at the Twin Metals project through the lens of the briefing document Interior provided. And if this briefing was anything like the one page briefing prepared around the same time for Zinke by Kathleen Benedetto — if that April 25 briefing represents the general position of Interior at that point in time — we can observe one thing at least. By April, the US government had completely set aside the previous findings of the US Forest Service and any consideration of the serious environmental risks posed by sulfide mining operations on lands adjacent to the Boundary Waters. The Benedetto briefing makes no mention whatsoever of these concerns. In fact, when Doug Domenech took a briefing on the Twin Metals project for the White House a little over a month later, on June 1, 2017, he apparently read what Benedetto sent him and needed some clarification on this point. That much is clear from Benedetto’s reply:

Benedetto_to_Domenech1June2017

Sic. And with that sloppily written gesture, which barely manages to disguise its contemptuous disregard, Benedetto relegates all science and science-based policy that would caution against permitting sulfide mining in this region to what “people opposed to the project believe.” (The only risk Benedetto appears to consider worth mentioning is the exposure of the American Taxpayer — the initial capitals are hers — to takings litigation, adding that BLM values the Twin Metals deposit at $49.48 billion. The figure is based on a 2014 BLM report that assumes a 44% rate of return. That $400 million investment sure has grown.)

The meeting at the embassy in Santiago needs to be seen in the context of this coordinated push to overturn Obama era decisions, sideline science and environmental protections, and turn Antofagasta’s much-touted investment to a tangible asset — a working mine. Without some response to the Department of State FOIA requests, context will have to substitute for content. Why should the State Department have been asked to intervene in the Twin Metals matter?

Perhaps the aim of this meeting was not to involve the State Department at all. That may not make a whole lot of sense, on the face of it. Perez made her career in the State Department, serving in various posts around the world since the 1980s. She worked for Condoleezza Rice, did a brief stint in Italy, and coordinated State Department anti-drug trafficking efforts before President Obama appointed her US Ambassador to Chile in 2016. She appears to enjoy no special favor with the Trump administration, and she was slated to be replaced by a Trump nominee: Andrew Gellert, who was nominated to the post on January 4th, 2018. And Gellert would be much more closely aligned with the White House than with foreign service officials in the State Department.

This is one last piece of context to consider. We don’t know why Arriagada brought the US embassy in Santiago into the loop on the Twin Metals project. It seems tolerably clear, however, that the US embassy in Santiago would have remained in the loop, and in much closer communication with the Trump White House, had Andrew Gellert been confirmed as US ambassador to Chile. As was noted at the time of his nomination, Andrew is the son of George Gellert, a longtime business associate of Charles Kushner. The Gellerts and the Kushners have done business together for decades, often by nothing more than a handshake — no contracts. Andrew is President of the Gellert Global Group, a food importing conglomerate that does some dried fruit and nut business in Chile, and also counts among its holdings and investments “numerous real estate ventures” with the Kushner Companies. After Charles Kushner’s conviction and imprisonment a decade ago, George Gellert started working closely with Jared Kushner on a number of deals, including the disastrous 666 Fifth Avenue deal. It seems worth noting — even if it’s hard to figure out whether it amounts to anything at all — that back in August of 2018, just a couple of weeks after Brookfield Asset Management paid $1.3 billion to rescue Jared Kushner and George Gellert from 666 Fifth Avenue, Andrew’s nomination to be ambassador to Chile was quietly withdrawn.

The Supreme Court is going to do what, exactly? Another update on MCRC v. EPA

It turns out Marquette County Road Commission v. EPA, the mining haul route case I’ve followed for a few years, is not dead yet. Back in June, the Sixth Circuit denied a petition for an en banc hearing. That seemed the end of it. Now, a TV6 report says that the Pacific Legal Foundation’s Mark Miller is talking — once again — about Supreme Court review.

A Petition for a Writ of Certiorari was filed on October 25th. A response is due on November 28th.*

Maybe Miller knows something about the composition of the court post-Kavanaugh I don’t. The Sixth Circuit firmly rejected his argument — that the EPA’s objections to the Marquette County Road Commission’s plan for County Road 595 were tantamount to a “veto.” Now, he believes

the U.S. Supreme Court will read our petition, review our case on the merits, ultimately, and agree with us that the road commission’s plan as approved by the state should at least be considered by a judge as compared to the EPAs decision to reject that plan.

If I follow what Miller’s saying here, the Supreme Court is going to review a case that was denied en banc hearing at the Sixth Circuit, and then recommend that a judge — what judge? an administrative law judge? in what court?  — consider the Road Commission’s plan and weigh it against the objections of the EPA. I think I got that right.

Jim Iwanicki, Marquette County Road Commissioner, has another set of expectations:

the purpose of the lawsuit is to have the U.S. Supreme Court review the decision of the Michigan Appeals Court to side with the EPA and to get an explanation as to why the the EPA turned down the permit in the first place….Iwanicki says he wants answers on the EPA’s decision. He says the road commission was not given a solid answer on why the EPA ruled against the road’s construction.

The construction of 595 would have gone through undeveloped wetlands.

“There is no mechanism right now to build 595,” said Iwanicki. “Right now it is more of the issue of, were we treated fairly and was the permit looked at properly. If not then those people that didn’t look at it properly should be addressed and called forward on the carpet.”

I wonder if these are actual expectations, or if Miller and Iwaniki — and StandU.P., the dark money 501c4 behind the push for CR 595 — are rabble rousing.

*Update: on November 21st, Solicitor General Noel Francisco requested, and the Supreme Court granted, an extension to December 28th to file a response. The reason given: “the heavy press of earlier assigned cases to the attorneys handling this matter.”

Second Update, 4 December: Two amicus curiae briefs were filed on November 28th in support of the Marquette County Road Commission by the Southeastern Legal Foundation and the Mackinac Center for Public Policy and the County Road Association of Michigan and Stand U.P., the 501c4 dark money organization promoting CR595. Both briefs take their cue from the argument that failed in the Sixth Circuit, asserting that the question before the court involves an “arbitrary and capricious EPA veto.”

Update, 19 December. The Department of Justice has requested a second extension, until January 28, 2019, to file a response. The reason given is, again, “because the attorneys with principal responsibility for preparation of the government’s response have been heavily engaged with the press of previously assigned matters with proximate due dates.” The request goes on to note that counsel for the Marquette County Road Commission does not oppose a second extension. So we can’t expect anything like a resolution in this case until the New Year.

Update, 28 January 2019. The Environmental Protection Agency responded today to the Road Commission’s petition for Supreme Court review.  As expected, the reply focuses on the fact the Road Commission “voluntarily discontinued the permitting process” back in 2015, then turned around and brought suit, saying the EPA had acted in an arbitrary and capricious way.

The EPA replies that this is a mess of the Road Commission’s own making.

To be sure, EPA’s objections may have had the practical effect of making the overall Section 404 permitting process (if petitioner had continued to pursue it) more protracted than it otherwise would have been…. At most, however, EPA’s objections required petitioner to continue with a permitting process that petitioner was obligated to invoke regardless of EPA’s objections—a requirement “different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.”

The Road Commission has repeatedly failed to convince the lower courts of its central contention, that EPA objections amounted to a veto.  Instead, when the Michigan Department of Environmental Quality declined in July of 2015 to grant or deny the Road Commission’s application, permitting authority for CR 595 transferred to the Army Corps of Engineers. The Road Commission could have simply continued the permitting process.  Why didn’t they? Instead, they’ve ended up here, at the door of the Supreme Court, looking for relief from — what, exactly? their own impatience?

Update, 11 February 2019. Attorneys for the Marquette County Road Commission have filed a Reply Brief. In a more sophisticated version of the veto argument rejected by the Sixth Circuit, they accuse the EPA of playing “a semantic shell game” around the issue of final agency action. They still use the word “veto” throughout the brief, and argue that EPA has made an important concession in its 28 January filing:

they now concede one crucial point that below they denied: the Corps required the Road Commission to submit a new Section 404 CWA permit application after the EPA vetoed the permit the State of Michigan stood ready to issue. [Here they cite a sentence from the EPA brief, which states:] “the Corps asked petitioner to submit a ‘new’ application.” That factual concession amounts to an implicit legal concession that, in regards to the State of Michigan Department of Environmental Quality (MDEQ) Section 404 CWA permit application process, the EPA’s work was consummated… Moreover, it recognizes that there were consequences to the Road Commission that flowed from that consummation of EPA’s work in regards to that vetoed state permit: now, the Road Commission had to take action in order to obtain a Section 404 CWA permit—it had to submit a new permit application to the Corps.

Who, exactly, is playing shell games? This argument appears to be little more than sophistry. When the EPA brief uses the word “new” at the indicated place (page 11), the brief is quoting the Marquette County Road Commission’s own petition. That is why the EPA places “new” inside quotation marks. EPA is, moreover, quoting Marquette County Road Commission in order to refute the assertion that this was anything but the continuation of an ongoing review process. To quote your opponent is not to concede his point.

The Reply Brief also cites the recent Weyerhaeuser decision over enforcement of the Endangered Species Act to argue that there is “a basic presumption of judicial review for any party suffering legal wrong because of agency action.” This would seem to create the burden of proving that the Road Commission suffered legal wrong — which would seem to bring us full circle: the Road Commission only suffered legal wrong if, in fact, the EPA’s objections constituted a veto.

Round and round we go. Now it’s up to the Roberts court to sort this out, or just turn it down. I still think the latter is the most likely outcome.

Update, 19 February 2019. A 13 February entry in the docket shows the case has been distributed for conference on the first of March. It is one of ten Sixth Circuit cases up for consideration.

You’ll find my other posts on MCRC v. EPA here

A Second Boundary Waters Reversal, And Its Connection to the First

Last week, Secretary of Agriculture Sonny Perdue announced that the USDA would cut short a Forest Service environmental study of the risks posed by sulfide mining in Superior National Forest, near the Boundary Waters in northern Minnesota. The study, which was launched only at the very end of 2016, “did not reveal new scientific information,” Perdue asserted. Those familiar with Perdue’s efforts to slash funding for research at USDA will not be surprised that the Secretary appeared, on this occasion, to demonstrate little regard for science and the time it takes to do good science.

Perdue offered vague reassurances that we can “protect the integrity of the watershed and contribute to economic growth and stronger communities.” After all, the statement goes on to say, northern Minnesota “has been mined for decades and is known as the ‘Iron Range’ due to its numerous iron mines.” That’s certainly true, and it will probably play to the pride people on the Iron Range take in their heritage; but Perdue never once mentions the kind of mining that is now under consideration — copper and nickel mining, or sulfide mining — and the enormous risks sulfide mining always presents. In fact, his statement does everything possible to sidestep the issue and conflate iron and non-ferrous mining.

The announcement was misleading, and it was all but lost amid the very loud noise created by the Anonymous Op Ed that had come out in the New York Times the day before. It is, however, consequential. Dan Kraker of Minnesota Public Radio rightly characterized Perdue’s announcement as “the Trump administration’s second major reversal of decisions made on mining in the Superior National Forest” — the first being the December 2017 legal memorandum on the renewal of Antofagasta’s mineral leases in Superior National Forest discussed in previous posts.

The two reversals are obviously connected and coordinated. Exactly how might be a little harder to say. We can start to trace their connection as early as 22 August 2017, when Department of Interior Principal Deputy Solicitor Daniel Jorjani holds a meeting with two White House officials. The topic: “Minnesota Project.” Here is the calendar entry for that meeting, which I’ve now added to the Twin Metals timeline:

MinnesotaProject

The apparent purpose of this meeting was to bring the White House, specifically the Office of the General Counsel and the Executive Office of the President, into the loop, or to provide the White House with an update on efforts to reverse this policy of the Obama administration.

The meeting included Michael J. Catanzaro, who was at the time Special Assistant to the President for Domestic Energy and Environmental Policy. He is profiled on DeSmog. His lobbying for oil and gas companies and his work with Senator Jim “Snowball” Inhofe and climate change denial campaigns are detailed there. Catanzaro stepped through DC’s revolving door and returned to his lobbying firm (CGCN Group) in April of this year.

The other White House official in that meeting was Stephen Vaden, who in August of 2017 was serving as Principal Deputy General Counsel at the U.S. Department of Agriculture. Vaden had also been a member of the Trump “beachhead team” at USDA. These teams were sent in to sabotage regulatory agencies and, as Steve Bannon put it, deconstruct the administrative state.

One month after this meeting, in September of 2017, Vaden would be officially nominated to become General Counsel at USDA. Legal staff at USDA did not exactly greet the nomination with enthusiasm. According to Politico, morale “plummeted.” There were concerns about Vaden’s lack of managerial experience, his hostility to unions, and his previous work for the Judicial Education Project on behalf of discriminatory Voter ID laws — which turned out to be the main focus of his 2017 nomination hearing. Vaden is still awaiting full confirmation in the Senate, but he is busy working at USDA and would no doubt have briefed Secretary Perdue on this matter.

So the meeting where these two Boundary Waters reversals connect comes a little more clearly into focus: Jorjani, with his strong ties to the Koch Institute, Catanzaro, an energy lobbyist hostile to science, and Vaden, with sketchy views on labor unions and voting rights, talking about a Chilean conglomerate’s mining leases in Superior National Forest.

McCollum Questions Zinke on the Boundary Waters Reversal

This morning, Interior Secretary Ryan Zinke appeared before the House Appropriations Committee at a hearing on the FY 2019 Budget.  The video below marks the moment when Minnesota Representative Betty McCollum questioned Secretary Zinke on the Boundary Waters reversal.

It begins with an exchange on Bears Ears and Grand Staircase, in the course of which Zinke says reporting in the New York Times based on U.S. Department of Interior memos is not “credible.” Fake news.

McCollum then moves the discussion to the Boundary Waters reversal. Her main question, which she asks in a few different ways, is whether Deputy Solicitor Jorjani met with any stakeholders other than lobbyists for Twin Metals Minnesota before issuing his reversal memo.

Zinke’s response that this is all part of the public record is at best disingenuous, given that nearly all the information we have to date about the reversal is the result of FOIA requests; and it’s also Trumpian in its post-truthiness, since Zinke just declared a few moments earlier that reporting based on Department of Interior records is not to be trusted.

At any rate, here is the full exchange:

From Caval to Kalorama

Kalorama

The Washington, D.C. mansion rented by Jared Kushner and Ivanka Trump.

We know this much. In December of 2016, just after the election, Chilean billionaire Andronico Luksic Craig bought the Kalorama Triangle mansion that Jared Kushner and Ivanka Trump now rent in Washington, D.C.. Just about six months later*, records show, the Department of Interior began drafting the December 22nd, 2017 memo that would reverse Obama-era protections for the Boundary Waters and renew the lease of lands in Superior National Forest held by Twin Metals, a wholly owned subsidiary of Antofagasta Plc, the mining conglomerate controlled by the Luksic family. Headlines have hinted at corrupt dealings, as I’ve noted in previous posts, but no hard evidence has come to light.

Maybe it’s all just a happy coincidence of the kind that frequently befalls the world of billionaires, mansions, and yachts. In any case, Andronico Luksic Craig, Jared and Ivanka’s landlord, is clearly a master of such coincidences. Journalist Horacio Brum dubs him “el gran titiritero de Chile,” the great puppetmaster of Chile. He is “a man who does not need to do politics,” writes Brum, “because he makes politicians.” The role Andronico Luksic Craig played in the scandal known in Chile as “el Caso Caval” — The Caval Affair — is illustrative.

The Caval Affair involved a $10 million loan for a shady real estate scheme undertaken in late 2013 by Natalia Compagnon, the daughter-in-law of Chile’s president, Michelle Bachelet, and 50 percent owner of a company called Sociedad Exportadora y de Gestión Caval Limitada. El Caso Caval was a drawn out and complicated affair, and charges of corruption and influence peddling would dog Compagnon and the Bachelet family for years. Just one feature of the scandal needs to concern us at the moment, and that’s the timing of the loan itself.

In the months immediately preceding Bachelet’s election, Compagnon had been trying to secure a line of credit for her company to purchase three plots of land in Machalí, in the O’Higgins Region in central Chile. Compagnon and her husband, Sebastian Davalos Michelet, met with the Vice President of Banco de Chile to discuss the project on November 6th, 2013. This was about ten days before the elections, which were scheduled for November 17th. The loan was approved on December 16th, 2013, just a month after Michelle Bachelet was elected to the presidency. The Vice President of the Banco de Chile who made these timely financial arrangements for the daughter-in-law of the new president elect was none other than Andronico Luksic Craig.

This time-lapse illustration produced for the news organization 24 Horas lays out the whole scandal in less than three minutes. Even if your Spanish is rusty, you can follow the story. Luksic first appears around 1:26.

The pattern looks familiar. When questioned about the loan, Luksic Craig at first denied meeting the young couple more than once. (This is classic Luksic, who claims never to have met his first family tenants, and only to have said hello to Trump himself once, at a Patriots’ football game in 2012.) Only later did he admit to various meetings and contacts between him and Compagnon, including one the day after Bachelet won the election. As the scandal grew, Andronico Luksic Craig managed to retreat back into the shadows and to keep himself and the Luksic family out of the headlines.

So far, the almost daily revelations of Jared Kushner’s far-flung attempts to bail out his family’s foundering real estate empire have not turned up anything that connects Kushner’s business troubles to Chile’s Grupo Luksic or the Luksic family. But it would not be terribly surprising to learn that there is more to the Kushner story and that Kalorama mansion than Luksic Craig claims. The president’s son-in-law is a quo looking for a quid, and when it comes to making that sort of delicate arrangement, Andronico Luksic Craig appears to be a real pro.

*Since writing this post, I have reviewed documents obtained through FOIA request that show the Department of the Interior working on the reversal of Obama administration protections for the Boundary Waters as early as February, 2017, just weeks after the inauguration.